from the pointless dept

As a whole bunch of folks have been sending in, the Saul Zaentz Company (SZC), which holds the intellectual property rights associated with The Hobbit, has stupidly threatened a small UK pub called "The Hobbit" which has used the name for over 20 years without any problem.

The article isn't clear if we're talking about copyrights, trademarks or both, but either way the whole thing is pretty silly. Yes, the pub "features characters from Tolkien's stories on its signs, has 'Frodo' and 'Gandalf' cocktails on the menu, and the face of Lord of the Rings film star Elijah Wood on its loyalty card." But is this really harming the rightsholder? I'm sure that SZC is doing all sorts of ridiculously lucrative licensing deals for the upcoming Hobbit movie, and so it's trying to clear the field of infringers, but all this does is make them look like massive, insensitive bullies. Hell, even Stephen Fry, who's starring in the movie, has tweeted how ridiculous this is, calling it "pointless, self-defeating bullying." But, you know, that's pretty much how Hollywood functions these days.

from the urls-we-dig-up dept

According to the "Infinite Monkey Theorem," a monkey hitting keys randomly on a keyboard for an infinite amount of time will eventually type out the complete works of Shakespeare. There have even been efforts to put that theorem to the test by creating virtual typing monkeys that managed to recreate at least one of Shakespeare's works. But those monkeys were digital – here are a few examples of some real, geeky animals.

from the playing-dirty dept

As you may have heard over the last couple months, AT&T has gone to war with customers who bought its "unlimited" data plans. While the company no longer offers such plans, existing users were grandfathered in. And they like those plans. AT&T, however, would prefer to move them over to tiered plans under which they'll pay more. So it began throttling their connections. If they were using a fair amount of data (really not that much), it slowed their connection down to the point of being basically useless. This is a pure bait-and-switch tactic, where the company sold customers something that it then failed to deliver.

A guy named Matt Spaccarelli felt that this was a clear breach of contract and sued in small claims court... and won $850 ($85 is his monthly fee, and the judge felt that there were 10 months left on the contract that was violated... so, $850). Spaccarelli then also set up a website with all the details, so that others could file their own lawsuits. Apparently, AT&T is none too pleased about this and is playing hardball with the guy, threatening to cut off his phone service after determining that he used the phone to tether.

Separately, they're trying to "settle" with him, but are pissed off that he's been public about the settlement attempts so far, as the key thing in the mind of AT&T lawyers and execs is getting a gag order in place to stop others from going down the same path. Of course, there's no requirement that Spaccarelli settle or agree to any gag order, and it sounds like he's not planning to:

Spaccarelli has posted online the documents he used to argue his case and encourages other AT&T customers copy his suit. Legal settlements usually include non-disclosure agreements that would force Spaccarelli to take down the documents.

In its letter, AT&T asked Spaccarelli to be quiet about the settlement talks, including the fact that it offered to start them, another common stipulation. Spaccarelli said he was not interested in settling, and forwarded the letter to The Associated Press.

from the time-to-find-a-better-ISP dept

Last July, we wrote about how the major ISPs had agreed to a "voluntary" "six strikes" plan (really five strikes, but everyone calls it six...) to start acting as Hollywood's private online security guards. And, by "voluntary" we mean without any input from the actual stake holders (customers) and with significant pressure being applied by the Obama administration. Since then, nothing has been heard, but the RIAA's Cary Sherman has now said that the ISPs involved will roll out their plans by July of this year, a year after the agreement went into place.

Sherman says that the plan had always been to give them a year to deal with the technical aspects of setting up the plan:

"Each isp has to develop their infrastructure for automating the system," Sherman said. They need this "for establishing the database so they can keep track of repeat infringers, so they know that this is the first notice or the third notice. Every ISP has to do it differently depending on the architecture of its particular network. Some are nearing completion and others are a little further from completion."

Funny how, now that the plan is in place, the RIAA has no problem admitting that it required significant infrastructure changes. Somehow I doubt the RIAA is paying for this... meaning that you and I are paying for it with higher fees.

Of course, the real question is what this means for the non-major ISPs who have not agreed to take part in this anti-consumer plan. Will the RIAA and MPAA now start assuming that this is a requirement, despite it not being in the law? That's what they've been doing with content filtering on user-generated content sites now. Multiple lawsuits have pointed out that because YouTube and others have installed upload filters, everyone should have to. I'd imagine it won't be long until they start making the argument that ISPs that don't implement such a plan are "inducing" infringement somehow.

from the keep-it-going dept

We've been working to do more with our Step2 discussion platform lately, and today we're announcing Step2 Startups -- in which various startups reach out to the Techdirt community for feedback/thoughts/advice. Step2 has already been set up for people, creators, entrepreneurs and innovators, but now we're starting to specifically highlight interesting startups that are asking for feedback from the community. The first participant is the startup Snackr, "The Pandora for Audio News".

A little over a year ago I was blown away by Paul Ford's brilliant essay entitled The Web Is a Customer Service Medium. It inspired me to write a post about the key idea in the essay: that the killer app for the web is providing the answer to the "Why wasn't I consulted?" question -- simplified to WWIC. Since then I've spoken dozens of times about WWIC in the context of building communities and navigating digital challenges.

The key to building communities really is to focus on the WWIC question -- and that was a big part of our thinking when we set up Step2. The platform was initially focused on business models and ideas for content creators, but the plan has always been to expand it to cover more and more useful concepts. We'd noticed that our community has a lot of opinions and insights into various new online tools and services. Any time we mention anything on Techdirt, people get into pretty detailed and involved discussions, and we thought we should leverage that with Step2. At the same time, we get tons of requests from PR folks or startup entrepreneurs themselves (we definitely prefer to hear from entrepreneurs directly over their hired-gun PR people) hoping to get coverage on Techdirt. Doing straightup "this startup is launching today" stories isn't really our bread and butter -- unless it fits into a larger trend we're looking at, it just didn't seem to be of much value. Plus, there are dozens of blogs doing that kind of thing.

But what we could do is help startups get feedback and insights from our opinionated and thoughtful community. We could help make sure you folks "were consulted" on various interesting new tools and services. Hence Step2 Startups -- where we'll be highlighting various startups that request feedback and thoughts from the community here. Step2 is an open platform, so any company can just post their questions directly and seek feedback, but if you want to be featured on Techdirt as well, like Snackr here, we ask that you hit us up via the feedback form. If it's appropriate, we'll work with you to find an interesting question on which the community is likely to have thoughts.

from the proving-a-point dept

As a bunch of folks have been pointing out, in response to the Paul Graham essay on property that we were just discussing, a guy by the name of Jake Gold set up SendThemYourMoney.com, which is a site encouraging you to send "money" to the RIAA/MPAA. But... by "money" he means "copies" of money, since the RIAA/MPAA's whole argument is based on the idea that a copy is no different than the original:

The Problem

The MPAA & RIAA claim that the internet is stealing billions of dollars worth of their property by sharing copies of files. They're willing to destroy the internet with things like SOPA & PIPA in an attempt to collect that money.

The Solution

Let's just pay them the money! They've made it very clear that they consider digital copies to be just as valuable as the original. That makes it a lot easier to pay them back in two ways: a. We can email them scanned images of dollar bills instead of bulky paper and b. We don't have to worry about the hassle of shipping huge quantities of cash.

Further instructions are on the site, including a copy of a dollar bill which I've also copied here (theft!).

Of course, there's a concern. We also hear from folks at the RIAA/MPAA and their supporters all the time about how all this copying "devalues" the content. So I'm a bit worried that Jake's little plan here is going to totally devalue US currency and drive the world into a massive recession. Clearly, that's the only possible result of this kind of plan (if we're using RIAA/MPAA logic).

from the you-do-what-to-do-what-now? dept

For all the lip service the MPAA has been paying to the claim that it loves tech innovations and wants to work with the tech industry to build cool things, why is it that every new "innovation" the industry comes up with only seems to make life complicated for people in ways that make no sense at all? For example, we recently talked about Warner Bros. ridiculous disc-to-digital offering in which people who want a digital version of movies they have on DVD can drive to a store where someone will rip the movie for them. In a world where the ability to rip your DVDs in the comfort of your own home is commonplace, that makes no sense at all.

I think we can add to this "huh?" discussion: the new effort from Fox, in which the studio will be putting up giant murals in malls to try to make it "easier" for you to buy DVDs. Here's how it works according to Deadline.com:

As part of an exclusive one-year partnership with Twentieth Century Fox Home Entertainment, the malls will have a wall with cover art and QR codes for many the studio’s home videos. People who want to buy the movie or TV show can download a smartphone app called Fox Movie Mall, available for both iPhones and Android devices. It will enable them to scan an image and go directly to a Web site to complete the purchase for a DVD or Blu-ray disc shipped free to their home.

So, yeah. You go to a mall (physical) and download a special app (digital) which you then use to scan a silly QR code (digital) to be sent to a website (digital) to order a DVD (physical) to be shipped to your home (physical). There are a bunch of ridiculous extra steps here and I can't figure out how any of this makes sense. If you have people in a mall already and you're trying to get people to buy physical product, why not just let them scan and pick up the physical product? If you're focusing on the digital components, why require a specialized app that no one's going to want to download, and then not offer a digital version of the film?

Fox execs claim that they expect this new effort "to reach as many 60 million people over the next four months with the mall wallscapes." I guess that depends on your interpretation of "reach." If you mean 60 million people may walk by and ignore these murals, perhaps that's true. Though that suggests Fox must be spending a ridiculous amount of money to get these murals pretty much everywhere. If you mean that 60 million people will actually pay any attention at all to this convoluted system to buy an obsolete product fewer and fewer people actually want, well, then someone's done a miscalculation somewhere.

Seriously: how hard is it for folks in Hollywood to ask this simple question: "Would I ever use this product that I'm developing?" If the answer is "not in a million years" perhaps it's time to move on to building products that consumers actually want.

from the sad-legacy dept

The Shoah Foundation is the very famous organization put together initially by Stephen Spielberg in the 1990s to interview and record video histories of the Holocaust before those who lived through it -- either as survivors or witnesses -- died off. Most people recognize that this was a tremendously important historical project, that involved over 50,000 interviews. In 2005, the Shoah Foundation became a part of the University of Southern California. The organization has continued to do incredible work, but it appears that it's in the process of tarnishing its reputation in a massive way by allowing its patents to be used in a series of patent troll lawsuits (while trying to avoid being associated with the dirty work).

The details are a little complex, and it took some work to track them all down, since it involves some shell companies and passing things around. As far as I can tell, no one else has yet reported on this story, but it's shameful to see the Shoah Foundation associated with patent trolling. During the 90's, however, the Shoah Foundation did apply for and get a series of patents (listed at the bottom of this story), mostly around the idea of cataloguing and managing a library of digital assets.

In 2010, USC and the Shoah Foundation offered to sell an "exclusive license" to the patents via Ocean Tomo -- the patent auction house that is a goldmine for patent trolls. Ocean Tomo pitched the patents as being useful for companies "designing, using or selling database management systems," but what they probably meant is that they would be useful for non-practicing trolls who wish to sue such companies. Later that year, the deal was done for $7 million, a portion of which went to Shoah -- who still retains ownership of the patents in question.

Guess what they got? Fast forward a year and a half or so, and it comes out that it's Altitude Capital Partners who holds the licenses on those patents (for what it's worth, USC insists that the patent license was actually purchased by an operating company, who later sold the rights to Altitude -- but no one seems willing to name this other company). If you don't know Altitude, think Intellectual Ventures before there was an Intellectual Ventures. It calls itself a private equity firm, but it mainly invests in patent lawsuits, which usually run through a series of shell companies. In this case, the license was given to Digital Innovations LLC (a subsidiary of Altitude) who put the patents in its own subsidiary called Preservation Technologies LLC.

But what's really troubling here is the idea that the Shoah Foundation -- an organization designed to do good and help preserve videos and history -- is now closely associated with patent trolling. Yes, there are a number of intermediaries in between the two, in order to provide some buffer, which I'm sure is supposed to "protect" Shoah from the blowback of patent trolling against a ton of internet companies that offer video online. But the complaints even call out the fact that the tech was developed by the Shoah Foundation. And Shoah still owns the patents in question. Shoah may never have meant for the patents to be abused in this manner, but it sold the license without any such restrictions and was happy to take the money, even knowing how the patents could (and likely would) be abused to attack innovative companies. The statement about them not wanting "bottom fishers" looks pretty ridiculous in light of what happened. If they didn't want bottom fishers, they should have made the license conditional on use. That they did not do so is their responsibility -- and thus USC Shoah should shoulder a significant portion of the blame for allowing the patents to now be used in such a fashion.

I asked USC and Shoah for a comment, and after handing me off to a variety of different people, I finally got this non-statement, which refused to answer nearly all of my questions:

USC owns a portfolio of patents for indexing and searching digital video libraries. USC licensed the portfolio exclusively to an operating company, while maintaining the right to use the patented inventions for research and education purposes. Subsequently, the operating company transferred the license to another entity. USC has learned that the current license holder has brought litigation relating to the patents. USC has no say or financial stake in the litigation.

In other words, "we don't want to talk about this." They especially appeared to have no interest whatsoever in responding to the query of whether or not such actions fit with the mission of the Shoah Foundation.

What's odd about all of this is why Shoah retained "ownership" here -- and if it did so in any real way. The deal that USC/Shoah did with Ocean Tomo was hailed as groundbreaking, in that they auctioned off a license, rather than selling the patents outright. USC/Shoah claims it kept ownership of the patents because it needed it to continue operating. But that makes no sense. Similar to the transfers of copyrights in cases like Righthaven, "ownership" of a patent is tied to the specific rights: the right to exclude and the right to sue. It appears that Shoah gave up both of those in their entirety, so retaining the "patent" is meaningless. They could have done the identical deal, in which they sold the patent, but included a license-back to Shoah for the life of the patent. I asked USC if among the rights it retained with "ownership" was included the ability to revoke the license and stop such lawsuits. At the time of posting, USC has not responded. Thus, either it does have that right and chooses not to use it -- in which case it has even greater culpability for these lawsuits -- or it really didn't retain any "ownership" of the patents in question at all. In which case the whole "we just licensed" it thing was nothing more than a PR stunt to allow for such patent trolling.

If USC/Shoah wants to proudly retain ownership of these patents, then they also need to take responsibility for how the patents are being (ab)used to shake down companies. They can try to talk a good game about being hands off and having no financial stake in the litigation effort, but that's because they already collected the cash. If the patents are being used for trolling, and USC/Shoah still owns them, then USC/Shoah has to bear the responsibility for how they're being used. That it seeks to distance itself from the lawsuits filed over patents that it still claims to own is an incredibly weak response and shows just how shameful an action this was.

The real shame in all of this, though, is that the legacy of Shoah is now tarnished by patent trolling. You would hope that the organization would think better than to have its good name sullied with such anti-innovation practices. Trying to shakedown companies like Google, Netflix, Amazon and Facebook for building their own digital library platforms... just seems wrong, and against the sharing spirit of the Shoah Foundation. An organization like that should be celebrating platforms that make it easier to preserve video and oral histories, rather than suing them. If Shoah really said that the patents wouldn't be used to sue others, then it should have made that explicit in the license. As things stand, Shoah owns patents that are being used for trolling. If it's not a troll itself, due to the licensing shell game, it clearly knew what it was getting into and enabled such nefarious trolling. It's too bad, as I've donated to Shoah in the past, but there's no way I'd donate again to an organization that has been involved in patent trolling.

USC Shoah should issue an apology in the strongest terms possible for what happened -- and this should be a reminder to everyone that even if patents are granted with the best of intentions, down the road, things may change. Shoah let greed get ahead of its mission and now its reputation will be forever tarnished for allowing such anti-innovation practices to happen with its own patents.
The patents in question:

from the why-do-we-let-this-happen? dept

As mentioned, it looks like Canada's new copyright law will include the "digital locks" provision, which is more accurately described as giving Hollywood a veto on any technology it doesn't like. If you haven't followed the specifics, the "digital locks" provision is an anti-circumvention rule that makes it against the law merely to break a "digital lock" (i.e., to route around any form of DRM, no matter how weak) even if (and this is the important part) you are breaking the digital lock for perfectly legal reasons. For reasons that I still cannot comprehend, Hollywood has insisted that anti-circumvention provisions -- even if there's no infringement -- are of utmost importance. If it was really about protecting against infringement, they would make it clear that the anti-circumvention provisions only apply in cases where copyright law is broken.

The real reason why they want anti-circumvention even when there's no copyright infringement is because it gives them a veto on any new technology. All they have to do is put in some sort of weak digital lock and suddenly the company has to "negotiate" a deal or they can be sued out of existence.

This is not theoretical. In fact, we now have yet another very real example of Hollywood's ability to kill a technology that only has legal uses thanks to the absolute nature of the DMCA's anti-circumvention clause (on which Canada's law was modeled). We've written about Kaleidescape a few times in the past. The company makes super high end DVD jukeboxes, that allow people to take the DVDs they own and store digital copies on a home (not internet-connected) server, to make it easier to watch those movies. The company has gone to amazing lengths to prevent its product from being used for infringement. Here, I'll let the company explain the details directly:

Kaleidescape has carefully designed its products to protect the rights of content owners. The hard-disk copy of each DVD retains all of the DVD CCA's scrambling and adds more encryption. The Kaleidescape System is a closed system that prevents DVDs from being copied to the Internet, to writable DVDs, or to computers or mobile devices. Furthermore, you cannot download a pirated movie from the Internet to a Kaleidescape System.

Every Kaleidescape customer must agree to copy only the DVDs that he rightfully owns, and must reaffirm this agreement upon copying each DVD. Kaleidescape Systems identify rental discs and prevent them from being imported. This combination of business practices and technology has been so effective that after years of searching for evidence that Kaleidescape's customers use their systems to steal content, the DVD CCA admitted in writing that Kaleidescape has done no harm to any of the motion picture studios, and was unable at trial to show any harm to the DVD CCA itself.

At one point, the company even went to such ridiculous extremes that it required users to put the DVD in the jukebox any time it wanted to play a movie from it -- effectively taking away the device's entire purpose, just to appease Hollywood.

And, none of it mattered. A court has issued an injunction against Kaleidescape selling these devices (pdf and embedded below). The specifics of the case revolve around questions of whether or not Kaleidescape breached the specific CSS license agreement that covers the DRM found on DVDs (which, again, Kaleidescape not only retains but enhances in its product). But that license agreement only has force because of the anti-circumvention provisions of the DMCA.

In other words this product, which can only be used for legal means -- and for which there has been no proof presented (ever) that it was used to infringe -- has been killed by a court... thanks to Hollywood's veto on this technology.

And the amazing thing is that all this does is make things worse for Hollywood. Considering how much Hollywood has been whining about DVD sales falling lately, a device like this only serves to make DVDs more valuable, meaning they would sell more.

Kaleidescape was founded in 2001 to bring consumers a fantastic experience for enjoying their movie collections. The Kaleidescape movie server makes digital copies of DVDs and Blu-ray Discs to hard disk drives so families can play back their movies instantly from any room of their home. A movie starts directly from the beginning, without forcing the family to endure advertisements, trailers, and confusing menus. With the company's wide-ranging innovations, customers can jump directly to the greatest scenes and songs in movies and concerts, and small children can start their movies all by themselves.

[....]

Over the years, Americans have amassed over 13 billion DVDs and Blu-ray Discs – about 110 per household. This means that many American families have a few thousand dollars tied up in a library of movies they hoped to enjoy over and over. However, with collections that size, families soon realize that it takes so long to find what they're looking for that it just isn't worth buying more discs. This frustration has led to a well-publicized 58% decline in revenues from the sale of DVDs since 2006.

The Kaleidescape System eliminates that frustration. Because it's so easy and fun for Kaleidescape customers to enjoy their movies, they start buying movies again, and with a bigger appetite. The average Kaleidescape family owns 506 movies on Blu-ray and DVD.

But thanks to digital locks and anti-circumvention rules, such a product got voted out of existence by the very industry it would help the most.

from the it-ain't-property dept

For many years we've explained why copyright isn't property. This debate flares up on a regular basis in various circles, and even here on the blog we just had the discussion all over again on my post about why copying isn't stealing. The comment thread on that post is already quite epic, with much of it getting into a semantic debate. And, while there is definitely a fair amount of circular talk, there are a number of really interesting and insightful points made in that (very long) discussion that are worth checking out. In the end, though, part of it is just a semantic debate. My point is merely that "property" has certain facets and "stealing" implies certain facets -- and when you're talking about copyright infringement, it matches some but not all of the key qualifications of property and theft. Pretending that the parts that match are sufficient simply means that you ignore the rather important parts that don't match.

But perhaps getting bogged down in semantics (even if they are important) is the wrong approach to getting past this debate.

As we were discussing those issues, Paul Graham published one of his typically thought-provoking essays in which he discusses how the definition of property is changing, such that copyright is no longer property. Whether or not you agree with the way he frames things, he does provide a a great parable that makes a strong point:

As a child I read a book of stories about a famous judge in eighteenth century Japan called Ooka Tadasuke. One of the cases he decided was brought by the owner of a food shop. A poor student who could afford only rice was eating his rice while enjoying the delicious cooking smells coming from the food shop. The owner wanted the student to pay for the smells he was enjoying. The student was stealing his smells!

This story often comes to mind when I hear the RIAA and MPAA accusing people of stealing music and movies.

It sounds ridiculous to us to treat smells as property. But I can imagine scenarios in which one could charge for smells. Imagine we were living on a moon base where we had to buy air by the liter. I could imagine air suppliers adding scents at an extra charge.

Here's the point. Even if you believe to your core that copyright is absolutely property in every sense of the word, and that copyright infringement is -- without question -- the absolute equivalent of stealing, to the "net native" generation, thinking of copyright in that manner is as unnatural as thinking about a smell as property. That's the key point in all of this. Argue semantics all you want. It's not going to matter to the generation of folks who grew up on the internet. No amount of "education" or semantic debate is going to convince them that copyright is property, just as no amount of education or debate is going to convince you that smells are property.

Given that, you have two simple choices:

Continue to argue that copyright is property.

Get on with your life and figure out how to thrive in a world where copyright isn't considered property.

Which one do you think is going to be more effective? Yeah, that's the point.

from the witness-the-sheer-bogosity dept

Every few months or so we see some elitist from the "old way" in the media business pop up with some neo-luddite screed about how wonderful things were the way they used to be, and whining about these darn new media things that are happening. These are often fun in a sort of "batting practice" manner, as they offer up some easy fastballs to take some easy hacks on, but I have to step back and marvel at what I honestly think is the perfect specimen of the genre. This time it's a piece by Harper's own publisher, John R. MacArthur, in which he rants at epic length about this fad known as the internet. It really has almost every single silly trope in this species. Let's go down the trope checklist.

Claim that you're debunking the statement "information wants to be free"? Check. Plus bonus trope of comparing tangible goods to information goods and thinking you've made a point? Check

Information wants to be free? So does food. But farmers aren't as stupid as certain publishers, journalists and ad salesmen.

Okay, look, can we just set a rule that says if you don't understand what Stewart Brand meant when he said "information wants to be free" (which contained a lot more nuanced argument) that you're not allowed to bring it up again? Or, could you at the very least note that most of the people you mock don't even say that, and it's much more commonly stated by neo-luddites who can't debate what the internet generation is actually telling them?

Pretend that because you were not good at selling internet advertising that internet advertising is clearly forever pointless? Check

We would all get rich as we gave it all away to as many people as possible. The opposite was true - the Web chopped up the market for online advertising so finely that there wasn't enough to go around for the biggest publications most dependent on ads. And it turned out that while Web sites may be great for classifieds, they are in general a poor medium for display advertising.

Indeed. There was a lot more competition, and if you stupidly decided to just try to mimic offline ads online, well, then you're likely to fail. Just like if you merely mimicked radio ads on television, you would fail. But those who learn what the medium can actually do can do quite well. Last I checked, Google was making billions in online ads. So it seems that someone figured it out.

Bring up a story of your times as a hard-bitten reporter back in the good old days in Chicago to prove your bona fides? Check

Decades ago, I learned how print on paper works without appreciating what I was being taught. More than 30 years ago, when I was a young general-assignment reporter on the Chicago Sun-Times, the copy-desk chief was a brilliant and acerbic man named Tom Moffett. Moffett thought that reporters were lazy wimps - he said that the really hard work took place on "the desk" - and he dared me one day at the Billy Goat Tavern (of "Saturday Night Live'' fame) to work for him. Was I man enough? Over my fourth Old Style I insisted that I was. The next day my city-desk bosses agreed, and I was loaned to the copy desk for six weeks as a kind of career-broadening internship.

Hey, it's story time down at old man saloon. I'll spare you the details of the story whose ostensible point is that newspapers sell ads and the content is just what goes in between. He could have just said that. But he didn't because this is the kind of story old journalists love to tell, because they think it makes them look cool. It really just makes them look out of touch.

Assume that this ever-dynamic market is static and that advertising has "failed"? Check

I have been radicalized, as both a publisher and a writer, and have instituted a "protectionist" policy in regard to the Internet and its free-content salesmen. In the long run, I think I'll be vindicated, since clearly the advertising "model" has failed and readers are going to have to pay

First of all, the internet advertising model hasn't failed. For many folks it's doing quite well. So sorry to hear that Harper's is too clueless to learn how to use it effectively. Second, there are more models to make money beyond advertising and paywalls. He could hire some people to tell him about it, but he spends the rest of this screed railing against those who actually get the internet, so he may have trouble finding anyone who is that interested in guiding him out of his self-induced haze.

Mock the quality of some online content, and assume that proves that all online content is bad? Check

However, as much as I object to free content, I am even more offended by the online sensibility and its anti-democratic, anti-emotional, even anti-intellectual effect. Devotees of the Internet like to say that the Web is a bottom-up phenomenon that wondrously bypasses the traditional gatekeepers in publishing and politics who allegedly snuff out true debate. But much of what I see is unedited, incoherent babble indicative of a herd mentality, not a true desire for self-government or fairness.

Learn to internet, John. Just because you seem unable to navigate your way to the tons of intelligent, insightful and thoughtful commentary and discussions online, it doesn't mean they don't exist. It just means you don't know how to use the internet. Which, come to think of it, may be the root of your problems.

Set up some ridiculous arbitrary standard for what some random new media effort must do to be a success? Check

Have WikiLeak's disclosures on Afghanistan moved us any closer to withdrawal from that country?

So unless it meets your standard, it doesn't matter? Really?

Refer to your own rejection of popular social media? Check

Long before I took myself off Facebook, I doubted the so-called revolutionary potential of the Internet.

You see, we know he's got cred because he was on Facebook, but now he isn't. He's a man who means business.

Make sure you talk mockingly about the original dot com boom while showing you didn't understand it? Check

Lewis was born skeptical, but when he heard the three men at the next table discussing in hushed tones what sounded like easy money [concerning a dot com opportunity], he couldn't help himself and he inquired about how we could get in on the ground floor. "It depends," said one of them smoothly, "on what kind of platform you want to establish, how you want to present your content." I said that I wanted to publish a magazine filled with sentences, not build a tree house, and the conversation came to an abrupt halt.

Oh my gosh. You ran into three idiots in a restaurant. I recently met a moron of a magazine publisher. That must mean all magazine publishers are idiots. Generalizations make you look stupid.

Mention that the young people who work for you have suggested you get with the times, and then mock them in a chiding tone? Check

These youthful members of my editorial staff - one of them now the co-editor of Mother Jones Magazine - were imploring me, demanding even, that I meet the Internet revolution head on by posting free what they also described as "content" on our brand new Harper's Web site so that it might be consumed by a huge reading public supposedly dying to read our longish essays, reporting and short stories.

As all of you who attended my last Delacorte lecture, 12 years ago, can surmise, what I told the staffers was, essentially, forget it. The Internet, I told them, wasn't much more than a gigantic Xerox machine (albeit with inhuman "memory"), and thus posed the same old threat to copyright and to the livelihoods of writers and publishers alike.

Perhaps your young staffers are going on to edit other publications because they want to work for publications that their friends actually read and which their peers have actually heard of. Increasingly, that's not Harper's.

Mock older technologies while clearly not understanding their impact? Check

Photocopying had long been the enemy of periodicals - why buy a copy or pay for permission to reprint when you can copy one article or photo cheaper on a machine multiple times? - so I had good reason to beware.

Why pay? Oh, I don't know. Perhaps convenience. Perhaps patronage. Perhaps because photocopying is a pain in the ass. Seriously, did this guy just wake up after a five decade nap? The photocopier is the enemy of periodicals? Is he serious?

Worse, the early Internet publishing promoters had brainwashed my employees into believing that we should not even resist their wondrous new photocopier - that on the contrary we should join them in a mass Potlatch ceremony that would result in a virtuous circle of wealth creation beneficial to all. I invoke potlatch - the gift-giving ritual of certain Northwest Indian tribes - because the Internet salesmen claimed, in sly mimicry of the indigenous tribesmen, that they were actually engaged in a redistribution of wealth that would result in reciprocal gift giving in the form of huge amounts of paid advertising.

Comparing information economics that you don't want to understand to an ancient Indian ceremony which you also don't understand does not constitute proving a point.

Think that because some online advertising is intrusive and annoying, it's clearly no good> Check

Internet advertising is so annoying and obtrusive.

When a display ad pops up on your screen and covers your free content, if you don't utter a profanity like I do, you delete it as quickly as you can or you switch to another Web site.

Indeed. So maybe try not to use such crappy ads.

Talk up the wonders of paper? Check

The advantages of advertising on paper become more obvious.

Consider the behavior of ordinary people after the letter carrier makes what is increasingly an evening delivery. Once they've collected the mail, including magazines, catalogs, junk mail and newspapers, even the most ad-resistant, Web-addicted individuals will glance at some of the printed matter on the way to the garbage can.

If you're basing your business model on the fact that some people might catch something out of the corner of their eye as they go to throw out their snail mail spam, you're in a dead business already.

Make bizarre and ridiculous statements that show you're totally out of touch with the internet generation? Check

Customers may order online, but most of them are responding to a mailing or a printed ad and do not for the most part browse in online catalogs.

Wait, what? I can't remember the last time I looked at a mailing or printed ad and that made me decide to purchase. No, when I need to buy something I *gasp* go online and browse online stores and then make a purchase. As does just about everyone I know. MacArthur might want to talk to someone who hasn't started receiving their AARP cards before making statements like that one.

Assume that because you still look at your paper mail, the younger generation does too? Check

Out of physical sight, out of mind. At some point you've got to turn off your computer or your iPad, but the mail and the brochures and printed matter just keep coming.

Actually, no, they don't. These days it's pretty easy to cancel a lot of physical junk mail, and even easier to dump it straight from the mailbox into the recycling bin. I see a lot more online advertising than print advertising. He follows up this statement by saying that advertising on the internet "is just too easy to avoid." That's true, but it assumes that advertising is the only way to make money -- and also assumes that there's no such thing as content-as-advertising, or advertising people want to see.

Pretend you're really concerned about the "common workers" who just can't make ends meet? Check

But by and large, the condition of the freelance writer and midlist author is very bad. Ask any author or freelance journalist - even fairly successful ones - what's happened to their income in the past few years.

The rationalizers will keep a stiff upper lip and talk about their wonderful Web presence and the number of hits on their sites. But honest writers readily admit their loss of income -- smaller book advances, fewer commissioned articles, slower payments -- beginning even before the latest recession.

This seemed like an interesting challenge, so I sent an email to the most successful freelance journalist I know, Matt Villano. Just a few weeks ago, he'd been telling me about how he's got too much work to handle these days and I know that he's one of the hardest working, hustling-all-the-time freelancers out there. So I sent him that quote from MacArthur and asked for his reaction. After first asking if it could wait because he's busy working on one of his many freelancing gigs, he emailed back that he's easily "earning six figures (even after deductions) as a full-time freelancer." But part of that is because he puts in the effort, is constantly networking (especially online via his Twitter account) and isn't waiting for someone to just hand him work:

"There's plenty of work out there for freelancers. They just have to work hard to find it. Another key: Being nice. So many people get into this business with a sense of entitlement. That's the wrong attitude to have. Our job is to make life easier for our editors (whatever business they might be in). That means bending over backward to rework a piece, not complaining at ordinary edits, and doing whatever it takes to see a project to completion. Anyone can get a gig once. Not whining will get you gigs repeatedly."

Matt's work regularly appears in all sorts of publications -- the NY Times, the WSJ, Entreprenur Magazine, Parenting Magazine, the San Francisco Chronicle and tons more. Maybe MacArthur should try hiring him, rather than his usual crop of folks. He might learn something.

Pretend that content creators today still need the old middleman or they flail around and die? Check

Book publishers are happy to exploit the distress of writers - they won't spend a nickel on promotion and very little on copy editing - but they will introduce you to a Web site designer and twitter your appearances at the local bookstore - that is, if there still is a local bookstore.

Yeah, see all that says is that the book publishers -- like magazine publishers -- are clueless old dolts, hopelessly out of touch. And it's why authors like JA Konrath and Barry Eisler are finding alternate routes to publish. They recognize that publishers don't promote much, and so they took matters into their own hands... and profited nicely because of it.

Make a clueless statement about SOPA? Check

[Peter] Lerangis is a children's book author, his wife a musician, and their livelihood is directly threatened by online piracy, as well as the downward pressure on writers' income exerted by the huge amount of free content available online.

As he correctly notes, "The anti-SOPA bluster has been framed by deliverers who give us the dazzling technologies that make our lives cool and their pockets deep.... To me, the anti-SOPA movement was nothing but a big corporate campaign in the guise of populism.... Big Tech's nonchalance about copyright violation tramples over people like my wife and me, who strive to make a living in the great tradition of the creative calm."

Oh my! A single quote from a clueless individual? Hey John, if I quote a content creator who was against SOPA -- or, say, a whole bunch of them, can we just pretend you didn't really assume a single uninformed individual is the be all end all of this debate?

Or, just for fun, what if we bring up someone, like Louis CK, who found that it's possible to compete with "piracy" not by passing a stupid law that wouldn't help, but by not being a jackass to his fans.

Pretend that because a few old line companies haven't made the transition to the modern era well, it means that an entire profession is doomed? Check

The New York Times and other companies did great damage to the cause of writing for a living with their free sites

No, basic economics took things away from an ivory tower world of gatekeepers and revolutionized it. More people make money today writing than at any time in history. That's an amazing thing.

Insist that anyone claiming to make a profit online is lying? Check

One of my major magazine competitors is peddling the falsehood that it is now profitable thanks to a boom in online-advertising revenue. You have to know the economics of direct mail and the cost of mailing magazines to know how preposterous this contention really is.

I'm guessing he means The Atlantic, a publication that has run rings around Harper's over the last few years -- and (more importantly) actually matters to folks of my generation. It's also a publication that, yes, is profitable -- and got there by embracing not just the web, but lots of smart business models and revenue streams.

Insist that profitable online publications don't exist? Check

As far as I know, there isn't a single profitable online-only magazine or newspaper in the United States and there isn't a single profitable newspaper or magazine with an online edition that is seriously considering dropping its print edition.

I realize that perhaps he's making an artificial distinction here between "magazines" and other online publications like a mere "blog", but I can assure you that Techdirt is profitable. And I know folks at an awful lot of other online publications that are also profitable. I guess we don't count.

Totally economically clueless arguments? Check

The Internet "idea" of universal, democratic and free access to "content" unhindered by borders or fees corresponds with the 19th Century British economist David Ricardo's and political theorist's Richard Cobden's notions about a tariff-free world in which all people produce what they're best at, and as a consequence won't be motivated to start wars because they're so justly compensated for their labor.

No such world has ever existed, and never will, but on this preposterous theoretical platform are built such "free-trade" pacts as the North American Free Trade Agreement that drive manufacturing to the cheapest labor locales along the Mexican side of the border, where no one is justly compensated, or to even-cheaper China, where labor racketeering (a conspiracy to fix the price of labor) occurs on a grand scale.

Ricardo's theories on comparative advantage still do make a lot of sense today and have actually been proven time and time again. But holding up NAFTA -- which has been anything but a true "free trade" package (even though there have been many benefits that came out of NAFTA, contrary to MacArthur's typically ill-informed claims) -- and insisting that that proves Ricardo's theories are wrong is like pointing to a single snowstorm as evidence that climate change (in either direction) does or does not exist.

Insist that people online are not meaningful in policy and political movements? Check

I suspect that the passion that drives successful political crusades is attenuated on the computer screen. All those millions of eyeballs glued to Facebook do not a revolution make, or even a reform movement. The energy devoted to the Net is an astonishing waste.

Yeah, because that whole Arab Spring thing never happened. And the SOPA/PIPA protests -- in which millions of people reached out to contact their elected officials (something he mocked earlier), clearly that didn't happen either.

Mock any potential to change society by internet startups, because they're also for profit? Check

To see how empty is the "social" promise of Facebook, read Zuckerberg's interview not long ago in the Financial Times, which is all about making more money: "Every industry is going to be rethought in a social way - you can remake whole industries."

Since when are these two things mutually exclusive?

Point to just a couple of print publications that focus only on print as proof that the internet is a fad? Check

But in my opinion, the strongest case against Web publishing currently resides in France, where two general-interest publications are defying the trends and the trendiness that has cost our business so much money and so many jobs.

Well, clearly, because those two specialist publications -- one a satire mag and the other a high-end quarterly -- have made a go of it, then that whole internet thing is over. Might as well just shut it down. He later cites Monocle magazine as well. We've actually used Monocle as a good example of giving people a reason to buy. They've designed a beautiful magazine with all sorts of unique physical features. If you can do that, then sure, physical is for you. But there's a limited market. I love how all internet advertising must be a failure, but a couple of offline publications succeed so that's our future.

Vague anecdotal story about sullen young people behind laptops, rather than happily frolicking with paper magazines? Check

A few weeks ago, in a column headlined "Screened out and Isolated," he described the scene in a cafe in Venice Beach, California. Twelve similarly dressed customers, all with Macbook Airs, and half wearing headphones for silence. Not a single paper publication in site. "Everyone looked extremely serious," wrote Brule, "no sunny smiles on this stretch of the California coast. There was little looking up from their screens, a lot of manic typing and even more twisting of stray locks."

Well, damn. I was on the subway the other day, and a homeless dude was reading a crumpled up discarded magazine. He didn't look very happy. Clearly, print is dead.

Put up paywalls on blogs, if you must blog, for pennies if that's all the market will bear. But at least hold fast to the principle that writing is work, that writing has value, and that writers should be paid.

This is a blog. It doesn't have a paywall. But we make pretty good money because of it. A paywall would kill this site. Perhaps some of us have figured out ways to make money online that MacArthur hasn't thought of yet.

Of course, we're happy to help him think through ideas on how to make money. But, you know, since he says that people should be paid, he'd have to pay us to share those ideas...

from the someone-send-him-a-copy-of-james-boyle's-book dept

Here's a brief article from New Zealand, which suggests that part of the US's proposal for the TPP agreement is to extend copyrights across the various participating countries to life plus 70 years -- what it already is in the US, but 20 years longer than it is in many countries. That's not too surprising. However, what struck me was a quote from New Zealand musician Ray Columbus who appears to be in favor not just of extending copyright, but of wiping out the public domain entirely:

"Some people believe in public domain. Why? Just so you can rip off dead people's works? That's pathetic."

No, Ray, what's pathetic is not knowing how culture works, and the importance of building on those who came before. Having never heard of Ray Colombus, I decided to look around -- and lo and behold, it appears that in his younger days Columbus recognized this. An interesting bio of Columbus reveals that his band, Ray Columbus and the Invaders, was originally a cover band who copied their dance moves (and, yes, as crazy as it seems, dance moves can be covered by copyright) from American servicemen on leave in New Zealand. Oops.

Other bios note how strongly he was influenced by other artists, such as Elvis, Cliff Richard and the Beatles. His one big hit, She's a Mod, is a cover song. Yes, it was licensed, but apparently the changes they made to the song were basically to copy things from the Beatles. And that's fine, because the fact is, people build on culture. It's not just about "ripping off" others. So it's rather hypocritical of Columbus to decry others for the same practice.

What it comes down to is that poor Ray Columbus seems to think copyright is a welfare system because he apparently failed to invest wisely or plan for retirement:

When 60s pop star Columbus suffered a stroke nearly four years ago, he was able to pay the bills because every time a song he has performed gets played, he still collects a fee.

"The performing fees I get give a dribbling of an income that's so important to artists."

How is that fair compared to most other professions? The bricklayer who has a stroke isn't able to pay the bills because by collecting a fee every time someone uses a building he built. No, the bricklayer and pretty much everyone else in every other profession has to actually save money and plan for their future. What makes Columbus so special that he gets to skip over that part?

from the true-spirit-of-innovation dept

Tech innovation happens in layers. The internet was built to make computers more useful, the web was built to make the internet more useful, social media (for example) was built to make the web more useful, other online services are built to make social media more useful, and so on. This kind of incremental improvement is always faster and more efficient when the last round of innovations is open and accessible to a new generation of developers—contrary to the claims of patent-system supporters who insist that protection is necessary to promote progress.

Such claims look the most ridiculous when you consider the fundamental technologies of the digital world. The high user counts of the latest web startups are nothing compared to the underlying communication protocols that make them and every other online service possible. A big part of the reason these technologies have become so widespread, and created a reliable foundation on which others can build, is that they were free to use. Last year, after the 20th anniversary of Tim Berners-Lee's invention of the world wide web, we wondered what the online world would look like today if he had locked the technology up behind a patent. A similar question is raised this month as we mark another 20th anniversary: that of the Multipurpose Internet Mail Extension protocol, better known as MIME, the technology that powers every single email attachment.

Mostly, [MIME] was a natural continuation of things I was pursuing. I wanted to live in a world where certain functionality existed.

When people asked me, "why do you work so hard on this?" I used to say that someday I'm going to have grandchildren, and I wanted to get their pictures by e-mail. A lot of people laughed, because it was inconceivable back then. No one even thought of digital cameras, so people pictured taking a print and scanning it in, and then transmitting it over their 1200 baud modem, and even that was expensive equipment.

Borenstein notes that the real challenge of developing MIME wasn't the engineering aspect, but the difficulty of getting everyone to agree to a single standard. By coming up with a clever solution and making it free and open-source, he succeeded, and now the entire world of email relies on MIME. Some might see his situation and think he got a raw deal, and that if he had patented MIME he could be pulling fat checks—but he knows it doesn't work that way:

The most common question I get about MIME is, "have you ever imagined what it would be like if you got a penny every time MIME was used?" And the answer is oh yeah, I imagined that (laughs). I did some checking up, and there's an estimate that MIME is used a trillion times every day. So if I got a penny every time, my annual income would be roughly equal to the GDP of Germany. But of course, that's just a silly fantasy. If there was any money involved, it would never have succeeded. Somebody would have been motivated to develop a similar thing for free.

This is the attitude of a true innovator. Borenstein developed MIME because he saw a problem that he wanted to solve—and he knew his solution wouldn't be of much use to anyone if he demanded an ongoing monopoly on it. Contrast that with trolls who obtain patents on abstract ideas and demand a cut from companies that are actually implementing them, and you see why the very nature of technology patents is opposed to their stated goal of promoting innovation. Today's true innovators recognize this, but the broken system forces them to pursue patents anyway, lest someone else try to patent their idea out from under them and use it to hold them back.

As we mark the anniversaries of fundamental online technologies like MIME, which have benefited the world and driven innovation by remaining free and open, maybe it's time to look at today's patent system, and update it to reflect the way technological progress really happens.

In a worrying turn of events, it appears that ICANN had no idea about
the rejection of its bid for long-term running of the IANA contract
prior to an announcement being posted on the NTIA's website today.

The organization - which has run the IANA functions for over a decade
- is also waiting to hear why the US government feels it has failed to
meet the RFP criteria that defined a new, more open approach to the
contract.

In a series of sudden and unexpected announcements earlier
today, the NTIA first announced it was canceling the entire rebid
process for IANA, then that it was canceling it because no one had met
its criteria, and then that it was extending ICANN's IANA contract for
six months to give it time to re-run the RFP process.

IANA is the part that manages the authoritative root servers and important things like IP address allocations. ICANN has run that (along with its core functionality of overseeing DNS) basically since all of this was set up when lots of people realized that perhaps relying on one guy (as brilliant as he was) to manage the entire internet wasn't the best solution. The fact that ICANN didn't breeze through the IANA RFP is an interesting result, and as Lauren Weinstein notes, it's as if ICANN has taken on quite an entitlement viewpoint:

In my view, ICANN's behavior of late regarding the NTIA has been
something like the Wall Street firms vs. their ersatz regulators -- a
sense of entitlement and "we're too important to be replaced" plowing
forward with the domain-industrial complex's "get rich quick" agenda,
with only lip-service being paid to NTIA. As I said earlier today, I
would expect ICANN to find a way to come into "technical" compliance
for now. But I still also feel very strongly that we need a
purpose-built replacement for ICANN that will not carry its ever
increasing political and "domainer" baggage. Not the UN. Not the
ITU. But a new international forum that cares about all the
Internet's users, not mainly the monied domain exploitation interests
at the top of the DNS food chain.

If only there were real efforts being made to move in that direction...

from the if-they-recognized-it dept

One strategy we've seen some media sites use over the years for their web properties is to lock up the "archives" and charge for access to it, on the assumption that if people want to see old stories, there must be some reason, for which they'd be willing to spend. Separately, many media properties assume that the only thing that really matters for generating traffic is the "breaking news." There's so much emphasis on "the scoop" and "being first," and very little emphasis on the follow through. It turns out, that may be a pretty big mistake. Chas Edwards highlights how some newspapers are discovering, to their own surprise, that old news can get an awful lot of traffic from social media sharing:

Apparently London’s Independent, as it rolled out the Open Graph, learned that several quirky stories from the late 1990s are the most shared stories of the early 2010s. (More data here.) If news publishers are sitting a goldmine of buried archival content, imagine the opportunity for publishers outside the breaking-news category if they can figure out how to resurface those great stories from last month, last year, or a decade ago.

This is actually something we've been really interested in lately. We see it happen quite frequently with our own archives. Suddenly, for no clear reason, a story from years ago will become wildly popular on Twitter or Facebook, and we'll get a ton of useful traffic. In fact, we made this point back in January, when we dug into "the numbers" from 2011 and discovered that our most popular post in 2011... was actually from 2010. It will be interesting to see if publishers can start to figure out ways to do more with "old news" rather than just assigning it to the "discarded" pile. I know it's an area that we're planning to explore more deeply in the coming months, so it's interesting to see others thinking along similar lines.